TERMS OF ENGAGEMENT BETWEEN FUEL TO FLY (PTY) LTD AND THE CLIENT DEFINED IN THE PROPOSAL
THE PARTIES HERETO HAVE AGREED WITH EACH OTHER AS FOLLOWS:
1.1 In this agreement, unless the context clearly otherwise indicates:
1.1.1 “Acceptance Date” means the date of acceptance of this Agreement by the Client on the relevant FTF electronic format/platform;
1.1.2 “Agreement” means this agreement and all annexures hereto;
1.1.3 “Balance” means the possible balance of the Fee left to be paid by the Client to FTF, minus the Deposit amount already paid by the Client, and which amount can be paid as a monthly or quarterly retainer amount or on a commission structure, as confirmed in the Proposal;
1.1.4 “Business Day” means any day except Saturday, Sunday, or officially recognised public holidays in the Republic of South Africa;
1.1.5 “Confidential Information” means any and all information that is disclosed by one party to the other party and that relates to the parties’ business relationship hereunder, including, but not limited to, information relating to the business methods, finances, systems, proprietary interests, client databases, domain and mail-server information, access to email accounts, marketing plans and any and all information exchanged between the parties pursuant to this Agreement;
1.1.6 “Deposit” means the possible deposit payment to be paid by the Client to FTF before the commencement of the Services, and which amount will be detailed in the Proposal, as part of the Fee;
1.1.7 “Effective Date” means the date reflected on the first FTF Deposit invoice presented to the Client for rendering their Services, which date shall indicate the commencement of the Services, notwithstanding the Acceptance Date;
1.1.8 “Fee” means the total amount of consideration, including the Fee and Balance, , paid by the Client to FTF for rendering the Services to it, as further described in clause 7 below and detailed in the Proposal;
1.1.9 “GDPR” means the European Union’s General Data Protection Regulation under Directive 2016/679
1.1.10 “parties” means FTF and the Client and “party” shall mean any one of them, as the context may indicate;
1.1.11 “POPI” means the South African Protection of Personal Information Act, 2013, as amended;
1.1.12 “Proposal” means the extraneous draft statement of work created by FTF and presented to the Client after having first engaged for the procurement of the Services from FTF, which includes any applicable Service deliverables and the Fee for the detailed Service deliverables to be rendered, which is to be confirmed between the parties at their initial consultation;
1.1.13 “Prospects” means possible prospective clients of the Client;
1.1.14 “Prospect Data” means the data related to Prospects which FTF acquires pursuant to its rendering of its Services, including but not limited to email addresses, Prospect names, company names, company regions and email response data.
1.1.15 “Services” means those email marketing and data analytics services which are to be rendered by FTF to the Client, as further outlined in clause 4 below and in the Proposal;
1.1.16 “Suppliers” means any entity that renders its services to FTF or any independent contractors who FTF contracts to work on the Services;
1.1.18 “VAT” means Value Added Tax, as levied under the South African Value Added Tax Act No 89 of 1991.
1.1.17 “Termination Date” means the date when the Services have been completed by FTF for the Client, and as confirmed as completed by FTF to the Client; and
1.2 Words importing the singular shall include the plural and vice versa, words importing any gender shall include the other genders and words importing persons shall include partnerships and bodies corporate.
1.3 The head notes to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
1.4 If any provision in the above mentioned definitions and/or the preamble hereto is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in this clause 1, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement.
2. DURATION OF THE AGREEMENT
2.1 The Client appoints FTF to provide its general, email and data analytics Services and FTF accepts the appointment.
2.2 The Agreement will come into effect on the Effective Date and will continue until the Termination Date, unless terminated earlier as provided for in clause 2.3 below.
2.3 This Agreement will terminate in the event that:
2.3.1 the parties mutually agree in writing to terminate the Agreement from a particular date;
2.3.2 one party gives the other party no less than 30 (thirty) calendar days’ written notice of termination; or
2.3.3 either party becomes entitled to cancel this Agreement in terms of clause 13 below, pursuant to an unremedied breach of this Agreement.
2.4 Upon termination of this Agreement for any reason:
2.4.1 both parties will remove and delete all intellectual property and confidential information of the other party’s which may be in its possession, or return it to the rightful owner thereof, as the case may be;
2.4.2 both parties will hand over any partially finished work or working files belonging to the other party; and
2.4.3 neither party will represent itself as being affiliated with the other.
3. RELATIONSHIP OF THE PARTIES
3.1 The relationship of the parties is governed by the terms of this Agreement and nothing contained herein will constitute a partnership, joint venture, agency, employment relationship or similar type of agreement between them. No party shall, by reason of the actions of the other party, incur any personal liability as a co-partner to any third party.
3.2 FTF is at all times an independent contractor who may provide competing services to the Services.
3.3 The Client understands and agrees that the Services require a collaborative exchange of information and/or approval from the Client. In the event that such requested information and/or consent is not provided timeously, the Services in turn will be delayed and FTF cannot be held responsible for such delay.
4. THE SERVICES
Initial and Confirmatory Consultations for Service Deliverables:
4.1 When the Client first engages FTF for the provision of its Services, FTF will draft the Proposal for the Client, detailing the particular Service deliverables and Fee applicable for the Services as requested (including whether the Fee consists of a Deposit and Balance and what those exact amounts/components are).
4.2 Once the Client has agreed to engage with FTF through the acceptance of the Proposal, the Deposit becomes due in order for the Services to commence, after which either one or more than one consultation is scheduled to obtain information and permissions (such as domain and email access) necessary for FTF to perform the Services and to confirm with the Client, the approach in which the Services are to be performed (such as the way the emails are written). The Client is aware of, and accepts, that FTF may use a non-disclosure and confidentiality agreement to protect its intellectual property delivered at any such initial consultation, where the Client has no right to use any such intellectual property unless it is the subject of this concluded Agreement and same permission is confirmed in writing from FTF.
Main Services delivery:
4.3 FTF will then render the Services to the Client as further detailed in the Proposal, and any other additional services provided for by the Client’s instructions from time to time, and expressly agreed upon by FTF.
5. GENERAL OBLIGATIONS OF FTF:
FTF undertakes to the Client that it will:
5.1 render the Services in accordance with this Agreement and shall act in a manner as it reasonably considers to be the most beneficial to the interests of the Client;
5.2 render the Services according to good industry practice and exercise the highest degree of due care, diligence and skill in the provision of the Services;
5.3 respect, observe and adhere to all applicable laws and the rules of any applicable professional regulatory body related to the Services; and
5.4 not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of the Client.
6. GENERAL OBLIGATIONS OF THE CLIENT
The Client warrants to FTF that it:
6.1 will pay each invoice issued/Fee in terms of clause 7 punctually and in full;
6.2 will provide accurate and complete information to FTF as and when requested, and work collaboratively with FTF to ensure the highest quality delivery of the Services;
6.3 will always provide FTF with relevant technological, server, computer and/or other technical tools within their system for FTF to provide the Services to it (specifically including but not limited to email account permissions, domain access and authorization, permission to communicate on behalf of the client via email to Prospects)
6.4 will provide FTF, at any time asked, with objective evidence of the Client’s explicit and lawful right to relay any personal information from its own data subjects and customers to FTF for the purposes of FTF’s provision of the Services, as well as operate as the “Responsible Party” as defined under POPI, at all times;
6.5 will adhere to, and attend, any scheduled session or features of the Services, decided by the parties from time to time;
6.6 explicitly understands and agrees that any and all Prospect Data acquired by FTF through the performance of the Services exclusively belongs to FTF in perpetuity and in all jurisdictions;
6.7 will maintain, at all times, the highest degree of good faith toward FTF;
6.8 will respect, observe and adhere to all applicable laws and the rules of any applicable professional regulatory body related to the Agreement; and
6.9 will not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of FTF.
7. PAYMENT TERMS
Service Fee and Deposit
7.1 As consideration for the Services, the Client will pay FTF the Fee as follows:
7.1.1 Same Fee may comprise of the Deposit and the Balance, where same component parts will be payable as detailed in the Proposal (including any dates applicable to the payment of the Deposit and/or Balance).
7.1.2 The Deposit amount detailed in the Proposal must be paid by the Client in order for the Services to commence.
7.1.3 The Balance to then be paid, may consist of the following options, which will be confirmed as applicable to the Client in the Proposal:
126.96.36.199 a monthly, in-advance installment payment of a particular amount, which is to be paid by the Client in advance of the next month’s Services; or
188.8.131.52 a quarterly, in-advance installment payment of a particular amount, which is to be paid by the Client in advance of the next calendar
quarter’s Services; or
184.108.40.206 a commission-based amount which will be agreed to between the parties which is to be paid in accordance with any timing or conditions as
detailed in the Proposal.
7.1.4 Every time a Deposit or Balance amount is due to FTF, FTF will draft and send an appropriate invoice to the Client reflecting the relevant Fee component cost to be paid by the Client to FTF.
220.127.116.11 The Client must pay any invoiced amount to FTF within 7 (seven) days of its receipt.
18.104.22.168 Notwithstanding the above, the Services will never commence unless at least the Deposit and/or other applicable Fee component have been
paid to FTF as required.
7.1.5 FTF may apply a discount to the Fee or have a promotion applicable to the Fee amount at any time, which FTF will confirm with the Client when concluding this Agreement and/or Proposal, failing which, the Client must have no expectation of any promotion or discount applying to the Fee they must pay.
7.2 All invoiced amounts shall be paid by the Client into FTF’s bank account and in the currency denomination as reflected on a FTF invoice.
7.3 All invoices exclude VAT, where applicable.
7.4 Interest may be charged on any outstanding amounts owed by the Client to FTF for a period longer than 60 (sixty) calendar days from the date in which the Fee became due, at a rate of 2% (two percent), compounded monthly, in arrears. The Client undertakes to pay any such interest along with the Fee, where necessary.
7.5 For clarity, and expressly agreed to and understood by the parties, until full and final payment of the Balance is made to FTF by the Client as required, all works and any rights thereto produced pursuant to the Services shall remain the exclusive property of FTF which the Client may not use without the express written permission of FTF.
8. VARIATION TO SERVICES AND DELAY OF THE SERVICES BY CLIENT
8.1 Where the Client requires a variation of the Services received from FTF at any time before or during the provision of the Services, the variation must be in writing, must detail the full specifications of the variation, and must be sent by the Client to FTF as soon as is reasonably practicable after discovering that such variations are necessary.
8.2 In this event, FTF will then provide the Client with a distinct additional quote for such varied services. If the Client does not accept the quote for the varied Services, FTF will not be obliged to carry out the variation, but both parties will nevertheless try all reasonable endeavours to find a mutually beneficial solution to any impasse relating to same variation.
8.3 If a Client causes unnecessary and/or obstructive delays regarding its obligations under this Agreement, or in assisting FTF in providing its Services to it, and same delays are not the fault of FTF, the Client understands and agrees that FTF is still entitled to demand full payment of any due and payable Fee from the Client, notwithstanding that same Services have not yet been completed as required by a particular date, as same delays were caused by the Client, and not FTF.
9. USE OF SUB-CONTRACTORS
FTF reserves the right to utilize sub-contractors for any of the rights or obligations contained in this Agreement, provided that such sub-contractors are bound to the same standard of service as FTF. Subject to the other terms of this Agreement, FTF will be responsible for the conduct of its chosen sub-contractors.
10. NON-SOLICITATION OF SUPPLIERS AND/OR EMPLOYEES
10.1 Unless there has been prior agreement in writing between the parties, the Client agrees that it will not directly contact or attempt to contract any Suppliers or in any way attempt to circumvent FTF by procuring any item or service in respect of the Services directly from any Suppliers.
10.2 The Client understands that any breach of this provision or any attempt to contract any of FTF’s Suppliers directly will cause financial damage to FTF, which will be recoverable by way of a claim for damages against the Client.
10.3 In addition, the Client will not, during the term of this Agreement or for a period of 6 (six) calendar months following termination thereof, directly or indirectly solicit, employ or contract in any manner with any employee of FTF.
10.4 In the event of a breach of clause 10.3, the Client will be liable to pay FTF a referral fee equivalent to 50% (fifty percent) of that employee’s annual remuneration package paid by FTF. The Client agrees that this referral fee is fair and reasonable and any reduction in the referral fee will be within FTF’s sole discretion.
11. INDEMNITY AND LIABILITY
11.1 Each party agrees to indemnify and hold the other harmless from and against any and all actions, claims, demands, proceedings or judgments (collectively “claims”) and any and all losses, liabilities, damages, costs, charges and expenses (collectively “losses”) of whatever nature and in whichever jurisdiction, which may be instituted, made or alleged against, or are suffered or incurred by a party relating to its own breach of obligations under this Agreement.
11.2 FTF provides business-related advice, content and solutions based on the information provided by the Client and therefore, apart from instances of fraud or gross negligence, FTF will not be liable for loss, damage or delay, including loss of profits or consequential loss, suffered by the Client as a result of FTF’s provision of the Services or negligence in respect thereof, including but not limited to the advice, content or solutions given by FTF based on the information provided by the Client.
11.3 The Client agrees to hold harmless and indemnify FTF against any losses, expenses or claims by any third party arising as a result of FTF’s provision of the Services.
12. CONSEQUENTIAL LOSS
Notwithstanding anything to the contrary contained in this Agreement, FTF or its sub-contractors shall not be liable to the Client, its customers, employees and contractors for any loss, damage or injury caused or sustained, save as may be occasioned as a direct result of any willful or grossly negligent act or omission on the part of FTF or its sub-contractors in the course and scope of the provision of the Services and provided always that FTF or its sub-contractors shall never be liable to the Client and/or its customers, employees and contractors in respect of consequential, indirect or special losses and/or damages (including loss of profits). In any event, FTF’s liability to the Client shall be limited to the proceeds of any insurance cover, if any, carried by FTF in relation to its liability arising in respect of the Services.
13.1 Either party (“the innocent party”) shall have the right, at its election, to terminate this Agreement forthwith by notice in writing to the other party (“the breaching party”) in the event that:
13.1.1 the breaching party commits any breach or permits the commission of any breach of any material obligation or warranty contained in this Agreement and, in respect of such a breach capable of remedy, fails to remedy that breach within 5 (five) Business Days after the giving of written notice to that effect by the innocent party to the breaching party; or
13.1.2 the breaching party repeatedly breaches any of the terms and/or conditions of this Agreement in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of this Agreement.
13.2 In the event of cancellation of this Agreement in the circumstances contemplated in this clause, written notice of any such cancellation shall be given and such cancellation shall take effect on the giving of such notice.
13.3 The cancellation of this Agreement or exercising of any right conferred by this clause shall be without prejudice to any claims hereunder then accrued or to any further or other rights or remedies of either party, whether under this Agreement or otherwise in law, and whether for damages or otherwise.
14. FORCE MAJEURE
If either party is prevented, whether in whole or in part, or delayed from performing any of its duties, functions or obligations under this Agreement, whether timeously or at all, due to an act of god (which for the purposes hereof shall mean war, political riots, civil commotions, legal prohibitions or restrictions, electrical load-shedding or surges, fire, floods, storms, earthquakes or other similar natural disasters), then such failure shall not constitute a breach under this Agreement, and the obligation to perform shall be suspended to the extent and during the continuance of such prevention provided that the parties shall use their reasonable commercial endeavours to minimise any delay occasioned thereby.
15. DATA PROTECTION
15.1 FTF warrants that it shall process any personally identifiable information (“Personal Information”) which the Client provides it with in accordance with its duties as an “Operator” under POPI and/or “Processor” under GDPR, where the Client shall fulfil the role of “Responsible Party” under POPI and/or “Data Controller” under GDPR, in all regards.
15.2 Should the Client require FTF to fulfill any particular conditions relating to its processing of any Personal Information as the Operator/Processor, the parties shall detail and agree to the same conditions in a distinct written agreement between them.
15.3 The Client hereby expressly warrants that it has obtained all relevant consents and/or can evidence its lawful bases for relaying any of their users’/data subjects’ Personal Information to FTF for the purposes of FTF processing it for providing its Services.
15.4 The Client specifically hereby allows FTF to anonymise (in other words, to remove all identifying features of any Personal Information, making it aggregated, anonymous and unregulated) any Personal Information it is provided from the Client (“Anonymous Information”), and to use same Anonymous Information for whatever purposes it wants, in perpetuity and in any location, where the Client expressly understands and agrees that it has no further claim or control over such Anonymous Information once FTF anonymises it.
16. INTELLECTUAL PROPERTY
16.1 FTF retains its copyright and moral rights in any and all literary and other work provided to the Client as part of the Services and any prior pitching or consulting stages, including but not limited to manuals, pitch ideas, raw ideas, example works, incomplete designs or content, data analytics, reporting mediums and methods, research. (“the Works”).
16.2 FTF grants the Client a non-transferable, irrevocable limited license to use the Works in furtherance of the full enjoyment of the Services by the Client, however, for clarity, the Works, in their original formats or in any other derivative formats, cannot be sold, altered, changed, licenced or used for commercial purposes by the Client for any reason without the prior written consent of FTF and which use will be subject to a license fee payable to FTF.
16.3 FTF shall and does hereby cede and assign all its right, title and interest in any details and/or information of any nature whatsoever relating to the Client, its clients, business, trade secrets and any other related data which may be stored in a database or other electronic format, produced for or on behalf of the Client by FTF in relation to or during the course of providing the Services contemplated by this Agreement (“Client’s Database Detail”), to the Client.
16.4 FTF shall, as soon as practicable after termination of this Agreement for whatsoever reason, deliver to the Client all and any Client’s Database Detail in a mutually agreed electronic format and shall destroy, delete and purge, as applicable, any Client’s Database Detail from its system.
17.1 Unless otherwise agreed to in advance, in writing, or except as expressly permitted by this Agreement, the parties will not, except as required by law or court order, use Confidential Information belonging to the other party to its benefit or disclose any Confidential Information to any third party.
17.2 The parties shall use the same degree of care to avoid disclosure of the other party’s Confidential Information as that party employs with respect to its own Confidential Information of like importance, but not less than a reasonable degree of care.
17.3 Upon the termination or expiration of this Agreement for any reason, or upon the other party’s earlier request, each party will deliver to the other party all of the Confidential Information in tangible form that the party may have in its possession or control which belongs to the other party and provide a warranty that all other Confidential Information has been destroyed.
18. DISPUTE RESOLUTION
18.1 Should any dispute or difference arise between the parties in relation to the provisions of the Services or the Agreement, either party shall notify the other party of such a dispute, and the parties shall meet within 7 (seven) Business Days of such notice and negotiate in good faith to resolve the dispute.
18.2 Should the parties fail to resolve such dispute or difference in the aforesaid manner or within such further period as the parties may agree to during their negotiation, either party shall be entitled to give notice of arbitration, provided that such notice shall not be given within 7 (seven) Business Days from the date that the parties first met as contemplated in clause 18.1 above.
18.3 The arbitration shall be held in accordance with the Commercial Arbitration Rules of Arbitration Foundation of Southern Africa (“AFSA”), by an arbitrator agreed upon between the parties, or, failing agreement within 7 (seven) Business Days, appointed by AFSA.
18.4 Unless otherwise agreed by the parties in writing, the arbitration shall be held in Cape Town, South Africa.
18.5 The parties both agree that in no circumstance will either party publicize the dispute on any public platform, including social media platforms. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim against the infringing party.
19. SERVICE ADDRESS
19.1 The parties choose as their service address their respective addresses set out in this clause 19 for all purposes arising out of or in connection with this Agreement at which addresses all the processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the parties.
19.2 For the purpose of this Agreement, the parties' respective addresses shall be:
19.2.1 for FTF: 206 Fairweather House, 176 Sir Lowry Road, Woodstock, Cape Town, 7925; and
19.2.2 for the Client as provided in the Proposal or at such other address, not being a post office box or poste restante, of which the party concerned may notify the other party in writing.
19.3 Any notice to a party sent:
19.3.1 by prepaid registered post (or by airmail if appropriate) in a correctly addressed envelope to an address chosen as its service address to which post is delivered shall be deemed to have been received on the 10th (tenth) day after posting (unless the contrary is proved);
19.3.2 delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its service address shall be deemed to have been received on the day of delivery; or
19.3.3 sent by e-mail to its chosen e-mail address, shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
20.1 Survival of Rights, Duties and Obligations: Termination of this Agreement for any cause whatsoever shall not release either party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.
20.2 Entire Agreement and Variation: No alteration, consensual cancellation, variation of, or addition to this Agreement shall be of any force or effect unless reduced to writing and signed by the duly authorized director/s of both parties. This Agreement contains the entire agreement between the parties and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
20.3 Counterparts: This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same document.
20.4 Indulgences: No indulgence, leniency or extension of time which FTF may grant or show to the Client shall operate as an estoppel or in any way prejudice or preclude FTF from exercising any of its rights in the future.
20.5 Governing Law: This Agreement shall be governed by and interpreted in accordance with the law of the Republic of South Africa. All disputes, actions and other matters in connection with this Agreement shall be determined in accordance with such law.
20.6 Invalidity: Any provision of this agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
20.7 Severability: Each undertaking in this Agreement shall be construed as a separate undertaking and if one or more of the undertakings contained in this Agreement is found to be unenforceable or in any way unreasonable the remaining undertakings shall continue to bind the parties. To the extent possible in any jurisdiction to which this Agreement may apply or in which this Agreement may be enforced, if any undertaking contained in this Agreement is found to be void but would be valid if the period of application thereof were reduced or if some part of the undertaking were deleted, the undertaking in question shall apply with such modification as may be necessary to make it valid and effective.
20.8 Cumulative Rights and Remedies: The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.